Civil Procedure II - Smith - Spring 2003-2-3

8/8/2019 Civil Procedure II - Smith - Spring 2003-2-3

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Civil Procedure II – Smith – Spring 2003

The System of Civil Procedure requires a balancing of Competing oals

1. Accuracy! "iscovery2. Fairness! the #rie "octrine3. Efficiency! $d%udication &ithout a Completed Trial4. Finality! The #ffect of 'udgment

I. PREPARING FOR TRIAL – DI!O"ER#

T$E !OPE OF DI!O"ER#

T%e &a'(r G(als (f Disc()ery Generally

Preservation of (aluable Information that might not be available at trial

$scertain and Isolate those issues that actually are in controversy )ind out &hat testimony and other evidence is available on each of the disputed factual

issues

Pr( *r(a+ Disc()ery A,ainst *r(a+ Disc()ery

* )airness! everyone is on the same playing level if everyone mustdisclose &ealthier party &ith a

better attorney &ill not have anadvantage of being able to affordmore thorough investigation

* $buse! prevents abuse bymandating broad discovery insteadof forcing parties to harass oneanother &ith costly and lengthyinterrogatories+ etc,

* Prevents squabbling over evidence* $llo&s the court and %ury to ma-e

the best*informed decision possible* .ore li-ely to lead to accurate

results

* Incentives! mandating that each sidehas to share the fruits of itsinvestigation may prove adisincentive to do any investigationon one/s o&n &ait for the other

side to give it to you

* Can be long and costly to providethe degree of detail required

* )ishing epeditions* Privacy interests

Rule 2-/0 Disc()ery c(e an+ Liits 26(b)(1) In General

Information that &ill be obtained must be

• 1ot privileged

• elevant to the claim or defense of any party

• .ust include the description+ location+ and condition of any discoverable

materials


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• )or good cause+ the court may order discovery of any matter involved in the

action

• The information nee+ n(t /e a+issi/le at trial+ as long as it is reas(na/ly

calculate+ t( lea+ to discovery of admissible evidence

♦ Renshaw v. Ravert ! can +isc()er 5s financial situati(n (nly if %e is suin,

f(r uniti)e +aa,es. enerally+ evidence at to a party/s ability to pay is notdiscoverable but it may be if it there are claims for punitive damages

asserted, Kelly v. Nationwide Mut. Ins. Co.! 4nli-e the current discoverystandard issued in 2000+ the 5elly Court held that only evidence that &asadmissible at trial and related to the requesting party/s claim could bediscoverable,

♦ Grant v. Hu ! 6 &as not allo&ed to discover evidence that &ould not be

admissible at trial+ nor the &itnesses &ho &ould in fact be called to trial by theadverse party,

♦ Cornett !tores! y(u can5t re)ent +isc()ery (f secifics 'ust /y a+ittin,

t%e ,eneral here+ the store tried to admit that 6 &as their highest paid

employee and didn/t &ant to reveal ho& much others &ere paid+ but courtallo&ed discovery so that 6 could sho& that he &as paid S7 .4C8 morethan other that 9 &anted to fire him,

26(b)(2) "i#itations

The court may limit discovery if it is!

• :i; 4nreasonably cumulative or duplicative+ or can be obtained in other &ays

• :ii; The party see-ing discovery has had ample opportunity to get this info

• :iii; ; Claims of Privilege or Protection of Trial .aterials

Rule 2-c0 Pr(tecti)e Or+ers

$ party may motion for a protective order to shield itself form ann(yance6

e/arrassent6 (ressi(n6 (r un+ue /ur+en+ assuming that they have tried to resolvethe problem &ith the other side before resorting to court action,

•

This is the broad protection provision F(r ,((+ cause s%(7n+ the court may ma-e any order 7%ic% 'ustice re8uires!

• :; That the discovery not be had

• :2; That disclosure happen on specified terms+ including designated time and

place

• :3; That a different method of discovery be used

• :?; That certain matter not be discoverable or at least be limited

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• :>; That the discovery be conducted only &ith persons ordered by the court

present

• :=; That a sealed deposition only be opened by court order

• :@; That trade secrets not be revealed+ or only in a designated &ay

• :A; That documents be filed simultaneously

The court may loo- at the evidence in camera if that &ould be a &ay ofaccessing the documents but &ould be less burdensome than discovery,:.arresse v, $merican 7rthopedic;

T$E &E!$ANI! OF DI!O"ER#

G(als (f &an+at(ry Disc()ery!

Accuracy6 Fairness6 an+ 9ustice

Prevent surprise! &e &ant a fair trial+ &hich is most possible if all parties are a&are of

the pertinent -ey information, If a party does not have some of the required information+ they have to go out and get

it+ and then share it &ith the adversary, #pedites the process of discovery if parties don/t have to continuously as- one

another for basic information #nsure that all pertinent information actually does become available to both sides

it may not occur to one of the opponents to as- for something that is -ey but that donot -no& about,

• 8o& do &e police required disclosuresB $nything that should have been disclosed

but &as not is not admissible at trial+ and thus useless to the party,

♦ Rule 3:c0; Failure t( Discl(se

$ party that &ithout a good reason failed to disclose any required

information &ill not be permitted to use that information at trial, Court may also impose further sanctions+ such as payment of reasonable

epenses,

Rule 2-a0 Re8uire+ Discl(sures;

2-a010 Initial Discl(sures; #ach party must immediately disclose any information

listed belo& that +iscl(sin, arty 7ill use t( su(rt its si+e NO nee+ t( turn()er t%e inf(rati(n t%at 7ill %el t%e (t%er si+e at t%is sta,e0!

:$; 1ames and information of any possible &itness the disclosing party &ill use to

support its side

:


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"epositions of those &itnesses &ho &on/t testify at trial directly

Identification of all the evidence that the party epects to present and that the party

might present at trial

♦ "isclosures in this section have to be made at least 3< +ays ri(r t( trial.

♦ =it%in 14 +ays after this+ parties may file ob%ections to use of depositions or

admissibility of materials,

♦ 2-a040 $ll disclosures must be in &riting+ signed and served,

Parties cann(t see> +isc()ery /ef(re 2-f0 c(nference Rule 2-+00

, Disc()ery Plannin, c(nference? Rule 2- f0

a, .ust be held at least 2 days before the rule = scheduling conference,:; $ttorneys representatives are %ointly responsible for arranging the

conference and for attempting in good faith to agree on proposeddiscovery plan,

:2; $ court may by local rule or court order require that parties and attorneysattend the conference in person

:3; .atters discussed at conference• 1ature and basis of their claims and defenses

• Possibility of settlement

• $rrangements for automatic disclosures under 2= a

• "evelop a proposed discovery plan

b, .atters discussed+ embodied in discovery plan+ must be given to court&ithin ? of conference,

Rule 3


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It fails to allo& reasonable time for compliance

equires person to travel more than 00 miles

equires disclosure of privileged info

Sub%ects person to undue burden

♦ :c;:3;:


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Fith &ritten interrogatories+ the deponent/s la&yers have much more

influence+ because they can go over the questions &ith the client beforehand,

Rule 33; Interr(,at(ries

Party is limited to 2> interrogatories :a;+ that may relate to any matter &hich can come

under discovery according to ule 2= :c;

$ll interrogatories must be signed :b;:2;

$ll ans&ers and any ob%ections must be served &ithin 30 days of service of the

interrogatories, The Court may direct a longer or shorter time+ and the parties can reachan agreement on their o&n, :b;:2;

If a party has any ob%ections+ they should state the reasons and still ans&er to the

etent that it is not ob%ectionable, :;

$ll grounds for ob%ection must be stated specifically+ other&ise ob%ection is &aived,

:b;:?;

33:d; If the ans&er to an interrogatory can be found in the business records of a party+

then the party can %ust transfer the files and the burden of see-ing out the ans&er to theother party – files can /e transferre+ t%e 7ay t%ey are >et in t%e re,ular c(urse (f/usiness.


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:c; 1on*parties may be compelled under this rule pursuant to ule ?> by subpoena,

Rule 3@; P%ysical an+ &ental Eainati(n (f Pers(ns

#ven in the most tetboo- cases there needs to be a court order to compel a person to

submit to a physical eam countervailing interests of invasion of privacy,

T%e rule is liite+ t( arties an+ t%(se in c(ntr(l (f t%e arties,

:a; Party requesting the order must sho& 77" C$4S#+ and state the time+ place+

manner+ conditions and scope of the eamination+ as &ell as the person &ho &ill performit,

The Court must consider hardship to the person+ embarrassment+ etc,

The court also has to limit eamination to the matter in controversy,

There must be n(tice to the party being eamined

:b;:; T%e arty /ein, eaine+ is entitle+ t( re8uest a c(y (f t%e re(rt fr( t%e

(t%er si+e5s eainer6 /ut t%en ust turn ()er6 at re8uest6 re(rts (f any

eainati(n it c(n+ucte+ itself. Hou basically have to &aiver your doctorpatient privilege if you &ant a copy of the

other side/s report,

• Rationale! If you -no& &hat the adversary/s doctor &ill say and &hat that party

&ill prepare+ but you don/t turn over anything+ you are more prepared than theother party+ and that/s not fair! unfair advantage,

c%la,en%auf ). $(l+er;


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Any atter a+itte+ un+er t%is rule is c(nclusi)ely esta/lis%e+ unless t%e c(urt

erits a 7it%+ra7al,

$ny admission under this rule is (nly f(r t%e ur(se (f t%e en+in, liti,ati(n and

not to be used against the party in other proceedings,

• ule 3@:c; gives us a standard for responding to such a equest for $dmission! If

you deny something &hen as-ed to admit+ and the other side proves it at trial+ youcan be forced to pay for proving it at trial,

Rule 2-e0; +uty t( suleent ri(r +isc()ery re8uests

If additional information comes through during discovery+ but after you/ve turned over

documents!

Hou have to supplement the things you/ve already turned over

Hou have to supplement your responses to all discovery devices ecept depositions

Rule 32; Cse (f De(siti(ns at Trial

:a; "epositions! may be used at trial in place of testimony against any party &ho &as

present or had notice of the deposition!

If someone says something at trial that contradicts the deposition+ you can al&ays

point it out to them

"eposition of a &itness may be used by any party for any purpose if! :a;:3;

• Fitness is dead :$;

• $t a distance greater than 00 miles :unless it appears that the absence of the

&itness &as produced by the party offering the deposition; :


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7b%ections to the competency of a &itness+ or to the relevancy or

materiality of testimony

#rrors and irregularities during oral eamination in the manner of

ta-ing deposition+ questions+ ans&ers+ or conduct of parties

:3;:C; 7b%ections to &ritten questions are &aived unless served in &riting

on the party submitting them &ithin the time allotted for serving cross*questions and &ithin > days of the last questions authoriDed,

♦ #rrors as to the &ay depositions are prepared+ signed+ sealed+ etc+ are &aived

unless a motion to suppress is made &ith reasonable promptness afterdiscovery of defect,

=(r> Pr(+uct D(ctrine ? 2-/030 Trial Prearati(n; &aterials

$ party may obtain discovery of documents and tangible things other&ise discoverable

under the broad provisions of :b;:; that have been reare+ f(r an+ in anticiati(n (fliti,ati(n in this trial by the party or their attorney (nly if there is!

Substantial Need

Undue Hardship in Obtaining the materials any other way

• In ordering disclosure+ the court &ill protect!

♦ .ental impressions of the disclosing party or counsel

♦ Conclusions+ opinions+ or legal theories

If something &as disclosed earlier+ the party must ma-e it available again,

$bsolute Privilege! 7ral statements made to a party or attorney by a &itness or third

party are never recoverable that &ould be as-ing the party or attorney to do discovery

&or- for the requesting party+ because the attorney &ould have to sit do&n+ try torecollect and then record in &riting the information, :8ic-man v, Taylor;

Substantial 1eed;

Hou have to describe &ith some particularity the materials &hich you are see-ing that

the other party &ants to shield from discovery+ &ithout disclosing the privileged infoitself 2=:b;:>;

The court &ill resolve the dispute by loo-ing at the information+ and deciding &hether

the other party really has a substantial need to -no&

The court has discretion &hether or not to let out the information

Rules (f =(r+ Pr(+uct D(ctrine!

-re%ared in anti$i%ation o litiation by the party and its attorney

• The standard under 2=:b;:3; protects not only information gathered after the suithas been initiated+ but anything collected prior to the suit in epectation of a suit

!ubstantial need/ndue Hardshi%

Mental I#%ressions

C'(%n !(. ). Cnite+ tates; suggested rules controlling $ttorneyClient Privilege re!

For- Product


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Communication must be have been made (nly 7it% t%e c(ntelati(n (f recei)in,

le,al ser)ices

Communication relates to legal services being rendered

Information*giver is an employee+ agent+ etc, in significant relationship to the

corporation that is the sub%ect of legal services

Communication &as made in confidence

Privilege may be asserted either by corporation or by the information*giver

Eerts; Rule 2-/040 an+ 2-a020

2=:a;:2; Hou automatically have to disclose the names and identities of eperts 7%( ay

/e use+ at trial

The epert shall also submit a &ritten report signed by a &itness+ containing all

opinions to be epressed and the reasons therefore

enerally+ these disclosures have to be made at least < +ays prior to trial

If info &ill only be used for rebuttal of another party/s evidence+ there is a 30 daytime limit after disclosure of the material to be rebutted

2=:b;:?;:$; $ party may depose any person &ho has been identified as an epert &ho

may testify at trial, If there/s a report requirement+ deposition shall ta-e place after reportis provided,

2=:b;:?;:


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• 1ot for any improper purpose+ such as to harass or cause needless delay and cost

of litigation

• 1ot unduly burdensome and not unreasonable

♦ If not signed+ it &ill be stric-en from the case unless immediately corrected

&hen pointed out,

:3; If any of the above are violated &ithout substantial %ustification+ the court mayimpose upon the guilty party an appropriate sanction+ &hich may be to pay theamount of reasonable epenses incurred because of the violation+ such as attorney/sfees,

Rule 3:; ancti(ns

:a; $ party+ &ith reasonable notice to other parties+ may apply for an order

c(ellin, disclosure as follo&s!

• :; $ppropriate Court! order to a party court &here action is pendingG non*

party &here discovery is being ta-en,

• :2; .otion!

♦ :$; if a party doesn/t ma-e a disclosure demanded by the rules of discovery+the other party may move to c(el after s%(7in, t%at it %a+ trie+ t( tal>t( t%e first arty in good faith.

If he has done this+ the court may!

7rder other party to respond

4nreasonable responding party court may order fees for the party

ma-ing the motion+ including attorney/s fees

• :3; $n evasive or incomplete disclosure &ill be treated li-e a failure to respond,

• :?; #penses and Sanctions

:b; )ailure to Comply &ith 7rder

• :; efusal by deponent to cooperate contempt of court

• :2; If party or its agent fails to permit discovery or to obey an order+ court may

ma-e any order that is %ust+ such as!

♦ :$; The issues in questions be created as admitted

♦ :


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other party to pay the reasonable epenses of proving it, The court &ill order thisunless!

♦ the request &as ob%ectionable under 3=:a;

♦ admission &asn/t important

♦ party failing to admit reasonably thought it could &in that round

♦ there &as another good reason :d; )ailure to $ttend 7&n "eposition

• If a party or its agents fail to!

♦ $ppear for deposition

♦ Server ans&er to interrogatories

♦ Serve response under ule 3?

Court may ta-e any %ust action+ such as under :b;:2; of this section

Party has to sho& that they tried to confer in good faith &ith the breaching

party

Party may also have to pay reasonable epenses of the adversary That a party finds the requested disclosure ob%ectionable is not a

defense unless there is a pending motion for a protective order under2=:c;

:g; )ailure To Participate in )raming "iscovery Plan

• If a party fails to participate in conferencing as required under 2=:f;+ court may

order payment of reasonable epenses caused by failure,

!$OI!E OF LA= – T$E ERIE DO!TRINE

Fhen the la&suit is based on a federal question+ the federal la& applies,

Fhen the la&suit is in federal court+ because of "iversity of CitiDenship+ &e have to decide

&hich la& applies,

=$AT HIND OF LA= $OCLD APPL#

7ift ). Tys(n! S&ift+ a .# citiDen+ sued Tyson+ a 1H citiDen+ over a chec- that Tyson refused tohonor, The question before the court &as &hich state/s la& to apply, There &as no federal statuteon point in the case+ so &e had to go to

ules of "ecision $ct+ 2A 4,S,C, J =>2! the la&s of the several states apply loo- at

state la& in 1H,

9CTI!E TOR#5 NATCRAL LA= T$EOR# – =IFT R CLE! Federal Courts shouldonly apply the STATUTOR law of the state if no statute! Court should review all

"ommon law authority! in"luding de"isions of other states! and ma#e the best de"ision

$a sort of Federal Common %aw&'

Story &anted to achieve a greater uniformity of the la& across all the states so that

anyone suing in $5 &ould get the same la& as anyone suing in $E, Therefore+ he feltthat courts should only apply the ST$T4T7H la& of the states in &hich they sat,

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State courts did not ma-e la&+ but rather found or declared it+ and therefore federalcourts should not be bound by state court interpretations,

8e hoped to prevent forum shopping! if there &as a uniform federal common la&+

people &ouldn/t purposely bring suits in some states than others,

Erie R. !(. ). T(>ins; .r, Tomp-ins/s arm is severed by a passing train+ and he sues the #rieailroad in Pennsylvania+ &hose state la&s &ould not have allo&ed 6 to recover, 8o&ever+ thedistrict court applied Kgeneral la&L and 6 &on, The Supreme Court reversed, T$E ERIE DO!TRINE! (n diversity suits! the Federal Courts must apply both

STATUTOR ) CO**ON law of the state there is NO F+,+RA% CO**ON

$-general.' %A/& Only state SU0STANT(1+ laws apply in federal "ourt! not

pro"edural laws&

The Supreme Court overruled the Kgeneral la&L allo&ance of the S&ift ule because!

.isinterpretation! The S&ift decision misinterpreted the ules of "ecision $ct in the

first place &hen it read it as pertaining only to state statutory la&, )orum Shopping! S&ift created the very problem that 'ustice Story &anted to avoid+

and that 6 in #rie too- advantage of! people pic-ed &here to bring suit based on thestatutory la& of the state+ or avoided the la& of the state because of diversity, "iverselitigants could choose their forum and their la&+ &hereas regular litigants had tofollo& the state la&, : ! Someone sued in federal court+ brining an action in equity forsome sort of shares, It &as obvious that under state la& in 1H+ her claim &ould have been barred by the statute o li#itations, )ederal courts applied a fleible standard that allo&ed her to bringthe claim,

T$E #ORH OCT!O&E DETER&INATI"E TET! (f the appli"ation of the state rule"an have a determinative effe"t on the out"ome of the "ase! then the rule is substantive

and the Federal Courts must apply the state rule! even if it is te"hni"ally pro"edural&

#ample! If the statute of limitations &ould prevent 6 from bringing the case in the

state court+ the )ederal Court of that state cannot allo& the case to go for&ard %ust because 6 happens to be a diverse citiDen and can file in )ederal Court,

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ationale – Prevention of )orum Shopping! Hor- is simply eercising the intention of

#rie to not give greater deference to a 6 simply based on diversity of citiDenship,

The outcome determinative test is a #atter o %oli$y& not $onstitutional $o#%ulsion, Problem! this seems to leave very little room for the )ed, , Civ, P,

Illustration of $pplication Ra,an ). &erc%ants Transfer J

=are%(use !(.! 6 filed his la&suit before the statute of limitations hadrun+ but in 5ansas he &as also required to serve notice on 9 prior to thestatute of limitations epiration, 6 failed to do so, $el+! 6 cannot proceed &ith the suit and 5ansas procedural la&

applies+ because the procedural la& determines the outcome+ i,e,&hether 6 can bring the suit at all,

u/stanti)e Pr(ce+ural

, "efines the parties/ legal rights2, Turns on questions of Policy3, Specific application – depends on

the case?, $pplies to issues outside the

$ourtroo#+ such as negligence+ dutyof care+ etc,

, )ocuses on enforcement+ notdefinition+ of the rights of parties,

2, Turns on questions of convenience,

3, $pplies generally to all actions,?, $pplies to issues inside the

$ourtroo#! time periods for filing+time limitations for bringing suit+etc,

*yr+ ). *lue Ri+,e! In a &or-er/s comp suit+ the court needed to decide &hether 6 &as anemployee of 9 or not, In South Carolina+ this question is decided by the %udge+ but under )ederal procedural la&+ it is a question for the %ury, Should the state or federal rule applyB

T$E *#RD A&ERI!AN R CLE! +ven if a state pro"edural law is out"ome

determinative! the Federal Rule may be applied if there is a "ountervailing government

interest& ationale! The choice that needed to be made in


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T$E $ANNA !ONTITCTIONALIT# TET! (f! be"ause the rule or statute is

suffi"iently broad! there is dire"t "onfli"t between a state pro"edural rule and a

Federal2

1. Federal Constitutional 3rovision2 the Constitution trumps all state la&s+substantive or procedural+ because the Constitution is the supreme la& of

the land,2. Federal Statute! the Statute also trumps the state la&+ if the statute is

Constitutional+ i,e, %ro$edural as prescribed under the ules #nabling$ct,

a. ruably -ro$edural ! chec- and see if the Statute can bearguably procedural if it can+ then it applies and trumps state

la&,/. It has to be procedural and not circumscribe any substantive

rights or issues,3. Federal Rule of Civil 3ro"edure! )ederal ule applies if it is valid,

a. ruably -ro$edural ! )ederal ules are valid as long as they do

not Kabridge+ enlarge or modifyL substantive rights under part of#$,

/. Governs the %ro$ess o enor$in litiants3 riht& and not therihts the#selves.

=al>er ). Arc( teel !(r.; 6 filed his la&suit before the statute of limitations ran+ but didn/tserve 9 until after the time had passed, In 7-lahoma+ a suit is not deemed to have commenceduntil service is completed, This seems to be in conflict &ith )ed, , Civ, P, 3, Fhich rule appliesB $OLDING! The Court finds that the la&s are not in direct conflict+ and therefore the state

procedural la& applies, !in$e the Hanna test does not a%%ly& the Court loo's to the %rin$i%les behind rie&

and inds that this is not a $ase o oru# sho%%in 6 &ould not have chosenanother place to bring suit based simply on a longer allo&ance for service,

*urlin,t(n N(rt%ern R. !(. ). =((+s; $E la& assesses a 0M penalty on every appeal thatloses because they &ant to prevent frivolous appeals, )ed, , $pp, P, 3A provides that the Courtcan assess a fee on an appeal that it deems frivolous+ but it/s not mandatory, Is there a directconflict+ and &hich la& should applyB $OLDING! ule 3A applies+ because there is no &ay the Court could both apply the $E

la& and not assess a penalty on an appellant &ho brings a good faith appeal+ but loses, ule 3A is Constitutional+ because it is sufficiently broad and it is procedural,

te7art Or,aniMati(n6 Inc. ). Ric(% !(r.! 6 files suit in $E+ though 6 and 9 hadcontractually agreed to ad%udicate any potential suits in 1H, 9 &ants to move the case+ but $Edoes not enforce forum selection clauses, Congressional Statute J?0? specifically addresses thisquestion+ and allo&s for this -ind of transfer of venue, Fhich one appliesB T$E TE=ART TET! A statute is Constitutional if it is arguably pro"edural , The statute

is broad enough to constitute a direct conflict &ith $E la&+ and it is arguably procedural because the issue is &hich federal court should here the case,

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In "iversity Suits+ to determine &hether to follo& state or federal la&+ as-!

1. Is t%ere a Fe+eral RuletatutePr()isi(n (n (int

a. If #E+ as-!i. Is it /r(a+ en(u,% t( %a)e +irect c(nflict $ANNA0

ii. Is it !(nstituti(nal un+er REA

1. !(nstituti(nal Pr()isi(n; this automatically governs over all statela&s+ both substantive and procedural+ as the supreme la& of theland,

2. Fe+eral tatute; this governs if it is aruably %ro$edural ,3. Fe+eral Rule (f !i)il Pr(ce+ure; this governs if the rule is in

direct conflict and if it is broad enough under #$ does it

ae$t enor$e#ent rather than the substantive riht itsel B/. If NO;

i. Is t%e la7 su/stanti)e (r r(ce+ural

1. If substantive state la& applies, :ERIE;

2. If procedural federal la& applies+


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a. Mason v. #eri$an #ery 4heel 4or's :p, ?2?;! court ruled contrary to the old precedent+ but &here the high state court had indicated in a different decision thatit &as getting ready to overrule the precedent,

/. If the Court feels that there have been recent legal developments that mayinfluence the state/s highest court in the future+ they may ta-e these into

consideration,?, Change of venue N change in courtroom, If improper venue is chosen+ and the venuetransferred+ the improper venue/s la& still a%%lies,

>, T%e +ecisi(n (f t%e fe+eral c(urt interretin, t%e la7 (f a state +(es n(t /ec(e/in+in, (n t%e c(urts (f t%at state if 2nd Circuit interprets the la& of .S as it thin-

.S &ould rule on an issue that it has not ruled on previously+ .S Supreme Court is still perfectly entitled to disagree and rule another &ay,

&cHenna ). Ort%( P%araceutical !(r.! 6 sued 7rtho for negligence and to recoverdamages for personal in%ury in P$, The main events all occurred in 78+ and under P$/s choice of la&s rule+ 78 la& &as applied, The P$ borro&ing statute in effect at the time indicated that the

78 statute of limitations should also be used,

III. AD9CDI!ATION =IT$OCT A !O&PLETED TRIAL

ATTA!H *AED ON T$E PLEADING

&(ti(n t( Disiss; Rule 12/0

.otions to dismiss are used frequently used by 9s+ if not to get the case thro&n out of

court then to buy time, 7nly needs to meet the criteria under ule A! Ka short and plain statement of claim

sho&ing that the pleader is entitled to relief,L

This motion may raise issues to be addressed later! the court can grant a motion todismiss for failure to state a claim (nly if t%ere is n( 7ay t%at t%e lea+e+ c(laintcan s%(7 a /asis f(r relief ,

!(urts 7ill n(t +isiss a lea+in, /ecause it c(ntains in)ali+ clais ie+ in 7

)ali+ clais :$merican 1urses $ssociation v, Illinois; 6 does not need to plead a lot of facts+ and the Court may allo& party to

amend pleading if misstated claim A c(laint 7ill n(t /e +isisse+ e)en if t%e secific relief re8ueste+ /y is n(t

a)aila/le6 as l(n, as s(e relief is a)aila/le. :"opico v, oldschmidt; Preclusive #ffect

*arrin, secific lan,ua,e t( t%e c(ntrary /y t%e District !(urt6 it 7ill /e a

'u+,ent (n t%e erits an+ 7ill /ar furt%er clais. :Sha& v, .erritt*Chapman OScott Corp.;

• $rguments for this!

♦ The pleading rules are pretty liberal+ and 6 has an opportunity to amend his

pleadings or correct defects before the claim &ould get dismissed, 8o&ever+ recent scholarship has epressed doubt that 2:b;:=; should be considered

as %udgments on the merits!

@


18/41


• If there/s a dismissal because 6 has stated 17 CE$I.+ ho& can you have claim

preclusionB

• $lso+ a claim may get dismissed &hen addressing only a portion of &hat

happened in a certain T O 7+ and it may be unfair to prevent 6 from everlitigating anything that happened in that instance,

uary 9u+,ent; Rule @-

The 7nly uestion! Is the party entitled on the facts pleaded to %udgment in their favor as

a matter of la&B This is an ad%udication on the merits!

If granted+ then final may be appealed,

If denied+ then not final may not be appealed,

Rule @-!

o 5or Clai#ant ! can move for summary %udgment either 20 days after the

commencement of the action or after opposing party filed for S',o 5or 0eendin -arty! a party defending against any claim can move at $1H

TI.# for S',o .otion for S' must be served at least 0 days prior to start of trial,

S' &ill be granted only if there is n( issue (f aterial fact an+ t%e

()in, arty is entitle+ t( 'u+,ent as a atter (f la7, If S' issue is interl(cut(ry+ S' can be rendered on the issue of liability

even if there is a genuine issue as to damages,o enerally only evidence admissible at trial may be considered in a S' motion,

8o&ever+ evidence that #ay lead to ad#issible eviden$e may also be evaluated, $cceptable methods of submitting evidence! affidavits+ interrogatories+

depositions+ admissions+ and admissible documents,

o The party opposing the motion must set forth facts sho&ing that there is a genuineissue+ i,e, they have to present evidence to refute the moving party/s motion, The opposing party $annot *ust rest on its denials of the moving party/s

allegations, If the opposing party does not affirmatively respond in some &ay+ S' &ill

be granted,o If the opposing party cannot present facts essential to %ustify its opposition the

court may order a continuance to collect the affidavitsevidence or may refuse the %udgment,

o If any of the affidavits presented are in bad faith+ the court shall order the guilty

party to pay the cost connected &ith the affidavits to the opponent,

• *ur+en (f Pr((f !o *ur+en (f Persuasi(n! :burden of proof; the test or standard :such as Clear and

Convincing+ etc,; that the party that &ants to &in on a claim must confronto *ur+en (f Pr(+ucti(n! obligation to come for&ard &ith certain evidence to

support the claimo In S' motions+ the ()in, arty has the /ur+en (f r(+ucti(n sho&ing that

there is no disputed issue of material fact, 8o&ever+ this burden shifts depending

A


19/41


on &hether the moving party if 6 or 9+ and also shifts &hen replying to the S'motion, 6 is the moving party! 6 has the burden in the la&suit+ so must prove

through affirmative evidence that he has a right to %udgment and that 9 hasnothing to sho& to bring up a material issue of fact,

• "esire to cross*eamine a &itness is not going to be enough fordenial of S' party could have deposed the person, :Eundeen v,

Cordner;

• Summary %udgment is disfavored &here the issue of material fact

deals &ith Kquestions of motive+ intent+ and sub%ective feelings andreactions,L :Cross v, 4nited States;

o Cross also did not produce any evidence other than his o&n

affidavits to affirmatively prove his case+ &hich is notsufficient,

9 is the moving party! 9 ust (nly +isr()e 6/s allegations unli-e 6+

+(es n(t nee+ t( r()e its (7n si+e affirati)ely as 7ell,

• $dic-es v, S,8, 5ress O Co,! 9 did not adequately or at all addressthe issue of the policeman being present in the restaurant+ &hichcould be important to 6/s allegation of conspiracy, Since 9 did notdeny or refute by submitting any affidavits+ they did not #eet theirburden o %rodu$tion+ S' &ill not be granted because there could bea genuine issue, If they had met their burden+ it &ould have shiftedto $dic-es to prove that he actually &as there,

• Celote Corp, v Catrett! Celote &as 9 in the actual suit+ and on S'

motion simply pointed out that 6 had no evidence to sho& that 9&as actually responsible for the product that hurt her husband, It issufficient f(r a in a suit t( affirati)ely (int t%e lac> (n

e)i+ence (n 5s si+e T%at faile+ t( eet %er /ur+en (f

r(+ucti(n in t%e first lace0 t( 7in (n 9.

• &aterial Fact!

o Fill affect the out$o#e of the case,

o aises a genuine issue if a reasonable %ury could reach dierent $on$lusions

concerning that fact,

• E)i+entiary tan+ar+s!

o Summary %udgment can be granted if no reasonable %ury can find for the non*

moving party when a%%lyin the law and standards a%%ro%riate to the particularcase, Therefore+ %udges ta-e into account the standard that 6 must meet in its

production of evidence &hen &eighing S' motions, :$nderson v, Eiberty Eobby+Inc! in a libel suit+ need to evaluate &hether 6 has sho&n malice by Clear andConvincing #vidence; Clear and Convincing! similar to about @>M probability

Preponderance of the #vidence! more than >0M probability+ or if it/s >0>0

easonable "oubt :Criminal;! something less than a 00M+ but really

high+ about >M


20/41


TAHING T$E !AE FRO& T$E 9CR#

1. 9u+,ent as a &atter (f La7 Directe+ "er+ict0;

Rule @


21/41


!(urt ay;

:; If a verdict &as returned by a %ury!

♦ Sustain the verdict

♦ 7rder a ne& trial

♦ "irect entry of '17(

:2; If no verdict &as returned

♦ 7rder a ne& trial

♦ "irect entry of '17(

@


22/41


"OLCNTAR# DI&IAL AND DEFACLT

1. "(luntary Disissal Common Ea&! 6 could dismiss his case &ithout pre%udice at any time before %udgment,

That meant that he could bring the suit again, There is a built*in incentive for 6 not to do this+ ho&ever+ because of the cost of

litigating more than once, easons &hy 6 may &ant to dismiss!

• )orum Shopping

• Inadequate preparation

.odern ule – Rule 41!


23/41


They are more &illing to disturb default %udgments on appeal and on a collateral

challenge, Rule @4c0! in default %udgments+ 6 is limited to getting only the recovery that he

requests in the pleadings, Rule @@!

Fhen 9 fails to respond or sho& up to defend himself in a la&suit,• 'udgment may be entered by either the cler- or the court against a party that has

failed to appear altogether,

• If 9 does file an ans&er+ but then fails to sho& up+ it is still a default %udgment

regular %udgment &ill be entered, $ppearance! Fhen has a party appeared in courtB

• .ost courts have 1otice of $ppearance forms that are filed by counsel

constitutes appearance

• If any sort of action has been ta-en+ even if not an ans&er but simply a challenge

to venue+ etc,+ that is still an appearance in court,

♦

If a party has appeared in the action+ then they shall be served &ith &rittennotice of the application for %udgment at least 3 days prior to entry of such %udgment, If 9 has sho&n some involvement+ he is entitled to 3 days notice,

:c; ettin, Asi+e Default! for ood $ause shown+ the court may set aside a default entry

or %udgment, F(r ur(ses (f Res 9u+icata! "efault %udgment is preclusive+ n(7 a/(ut t%e la7suit6 t%e 'u+,ent is n(t c(nsi+ere+ a "ALID

'u+,ent (n t%e erits an+ t%eref(re is n(t a /ar /ecause it fails t%e )ali+

re8uireent (f R9,

I". TRIAL

Rule 3K; 9ury Trial (f Ri,%t

The right to a %ury trial is preserved as declared by the @ th $mendment of the Constitution,

• This has generally been interpreted as the right to a %ury that eisted in @ &hen

the amendment &as adopted,

• T%ere is n( ri,%t t( a 'ury trial in e8uity suits6 suc% as in'uncti(n (r secific

erf(rance.

• T%e :t% Aen+ent %as n(t /een eten+e+ t( t%e states t%r(u,% t%e 14 t%

Aen+ent6 s( t%ey are n(t re8uire+ t( r()i+e t%e ri,%t t( a 'ury in ci)il

cases. "emand for %ury trial must be served n( later t%an 1< +ays after t%e ser)ice (f t%e

last lea+in, directed to such issue, $ party can demand a %ury trial on specific issues or on the &hole

Faiver! a failure by a party to request a %ury trial &ill constitute a &aiver of that right,

Rule 3; Trial /y 9ury (r /y t%e !(urt

*y 9ury; if properly requested+ a trial shall be by %ury on all the issues requested unless!

23


24/41


• The parties have agreed bet&een themselves by oral or &ritten stipulation to a

trial by the court &ithout a %ury+ 7

• The court itself has determined on its o&n initiative that a right to a %ury does not

eist under the Constitution or the Ea& in this situation, *y t%e !(urt!

• $nything not demanded for trial by %ury shall be tried by the Court,• If a party has failed to demand a %ury+ the %udge can order a trial by %ury at his

discretion,

A+)is(ry 9ury an+ Trial /y !(nsent!

• If an action is not triable to a %ury+ the %udge may still bring in an advisory %ury if

this does not violate the Ea& of the 4,S,+ and if all the parties agree, This %ury/sfindings &ill have the same affect as a regular %ury,

Rule 4; ecial "er+icts an+ Interr(,at(ries

ecial "er+icts!

Fhen the %ury returns a verdict &ith special &ritten findings upon each issue of fact

does not conclusively find the liability though,

If any party does not ob%ect to the omission of any facts by the %udge in giving the

%ury its instructions+ that ob%ection is &aived, General "er+ict 7it% Interr(,at(ries

Court may submit to the %ury &ritten interrogatories on certain issues of fact along

&ith the verdict question,

• Fhen the general verdict and the ans&ers are in accord %udgment &ill be

entered pursuant to ule >A,• $ns&ers are consistent &each other+ but 17T &ith the general verdict

%udgment may be entered in accordance &ith the ans&ers and not&ithstanding thegeneral verdict 7 the %ury may need to return for reconsideration 7 a ne& trialmay be ordered,

• $ns&ers on the questions are inconsistent &ith each other and &ith the general

verdict 17 '4".#1T+ and the %udge shall either return the %ury for further

consideration or order a ne& trial,

Rule @1; Instructi(ns t( t%e 9ury

♦ #ach party may file &ritten requests for the -inds of instructions that they

&ant addressed to the %ury before the %ury is charged,

♦ 1o ob%ections to %ury instructions &ill be recogniDed unless they &ere

ob%ected to before the %ury retires to consider the verdict,

T$E PRO"IN!E OF T$E 9CDGE AND 9CR#

2?


25/41


$ist(rical Pr()inces (f 9u+,e an+ 9ury

Pr(?!(urt Pr(?9ury

Ea& )act

#pert Communal

4niform ParticulariDed8istory 8istory

&(+ern 9ury;

Functi(ns

"etermines &hat the facts are

#valuated the facts in terms of the legal consequences formulated by the %udge

Presents the result of its finding in the form of a verdict

"oes not act as a fact finder on preliminary questions+ such as admissibility and eclusion

of evidence+ etc, usually happens before trial

Chains of Inference! .ust infer the eistence or non*eistence of important facts from

other facts, Controls on the 'ury!


26/41


• This is only allo&ed if &hen the legal issues are subordinate to the equitable

issues,

• This doctrine eliminated the need to bring 2 la&suits to resolve the legal and

equity claims,

♦ 8o&ever+ this policy of efficiency meant that none of the subordinate legal

claims received a %ury trial, This problem has been enhanced by the creation of ne& remedies that are

not easily classified as either legal or equitable, &(+ern Rule

*eac(n T%eaters6 Inc. ). =est()er! Trying the equitable claims of la&suit before the

legal ones results in an effective in%unction of the legal claims+ and should not beallo&ed, =%ere t%ere are /(t% e8uita/le an+ le,al clais in a suit6 t%e le,alclais ust /e +eci+e+ /y a 'ury6 an+ t%e 'u+,e ay t%en enter a 'u+,ent f(r

t%e e8uita/le relief s(u,%t, 7nly in the most special circumstances can the right totrial by %ury of legal claims be lost by prior ad%udication of the equitable claims by thecourt,

♦ Declarat(ry relief is entitle+ t( a 'ury trial as a le,al clai!

Rule @:! controlled by 2A 4SC J 220+ and there is a right to a %ury trial

obtained under ules 3A and 3, T%e eistence (f an(t%er ree+y +(es NOT reclu+e a +eclarat(ry

relief 'u+,ent if ar(riate.

#liminates the Clean*up "octrine

• Three*part Test!

♦ $re the issues legal tried by a %ury,

♦ $re the issues equitable tried by the %udge,

♦ $re the issues both legal and equitable first tried by a %ury+ then evaluated

by the %udge,


27/41


• Curtis v& %oether ! Congress may through statutes epand the right to a %ury trial

&here it did not eist before :t% Aen+ent alies t( acti(ns /r(u,%t

un+er C.. statutes t%at create /(t% +aa,es an+ e8uita/le ree+ies,

T%e !urtis Test to determine if a claim is equitable or legal!

If The claim did not eist at common la& in @ :; Analogous to a common*la& claimB

:2; Nature (f Relief (u,%t – le,al (r e8uita/leB :.7# I.P7T$1T;

Tull v& United States!

Civil 0a#aes! retribution for &rongful conductG punishment for culpable behavior

uitable 0a#aes! etracting due compensationG restoring the status quo

• The more discretion a %udge has on damages+ the more li-ely they are to be

euitable, In Tull+ the remedy &as more legal+ so there &as a right to a %ury trial on the legal

claims+


28/41


3, #ach party is entitled to at least one Kfull and fairL change to litigate before being precluded,

?, Preclusion may be 7ai)e+ unless it is raised in a timely manner+ usually at the beginningof the litigation,

!LAI& PRE!LCION – R E 9CDI!ATA

"efinition! a %udgment on a clai+ once rendered+ is a bar to any further litigation,? equirements! ae transacti(n an+ (ccurrence $ny claims arising out of the same set of facts are

part of the same claim+ even if they &ere not all raised in the first suit Rush v. City o Ma%le Heihts! 6 sued the city in municipal court for damages

suffered in a fall+ and &on, She could not then sue the city again for personal in%uriessuffered because her claim had already been ad%udicated,

5ederated 0e%art#ent !tores& In$, v. Moitie! 6s &ere 2 of @ 6s in a la&suit that &as

dismissed in federal court, Fhile others decided to appeal+ .oitie and


29/41


=%at is a !lai 7it%in t%e eanin, (f Res 9u+icata

There are ? tests voiced in ush!

o Same right has been invaded! each right you had used to be a separate cause of

action – you &ould have a separate &rit for each claim+ and you couldn/t combinethem,

o Same &rong – same tort+ etc,+ gave rise to both claimso Same evidence – &ould have offered the same basic evidence to support her

claim for in%ury as &ell as property damage :7ld rule;o ae transacti(n an+ (ccurrence :TO7; – this is the most common approach

The broader the definition of a claim+ the harder it is to bring another suit,

P(licy Interests;

* Efficiency!o This is the most efficient &ay to approach preclusion and to ma-e sure that

%udicial resources are not being &asted in relitigating over and over the same setof facts,

* Finality!o $lso fair to the 9s+ because it gives them a sense of finality they do not need to

&orry about continuously being sued over the same thing,* Fairness!

o .ay seem unfair to some 6s+ but they are allo&ed to bring all their counterclaims+

so there is a &indo& for redress of grievances,o )air to the &itnesses because they only have to be summoned to court once,

* !(nsistency!o If there is only one suit+ there is no danger that different %uries &ill come to

inconsistent conclusions and &ill thus undermine the faith in the %udicial system,

!lai Preclusi(n ). Stare ,e"isis; &ays in &hich litigation in one action affects subsequentla&suits,

* Courts are normally reluctant to depart from precedent,

!lai Preclusi(n tare Decisis

*


30/41


* Eends legitimacy to the system

predictive po&er

Defense Preclusi(n

7nly arises if 6 is trying to enforce a %udgment against 9 on a claim that has already beendecided "efense preclusion operates %ust li-e the la& of counterclaims! 9 cannot raise a defense in

a subsequent suit that he did not raise in the first suit,

• Mit$hell v. 5ederal Inter#ediate Credit 9an' ! In a %urisdiction &ith no

compulsory counterclaim rule+ .itchell puts do&n as collateral for a loan the proceeds from his potato sales, The loan &as for Q000+ but the t%e f(ll(7in,!

Is there a compulsory counterclaim rule in this %urisdictionB

• Fe+eral !(urt! yes+ ule 3 9 must bring all his defenses at once,

• tate !(urt! maybe,

♦ If #E: same as above

♦ If NO; 2 options

Common Ea&! the courts may follo& the traditional common la&approach+ &hich is that you don/t have to bring all your defenses to allyour claims at the same time, ationale! It may be unfair to as- 9 to sue on everything &here he did

not choose the forum+ etc, .itchell ule! some state courts may apply the .itchell rule+ &here

basically if a defense is not raised that is connected to another claim+ thatclaim may be brought in a subsequent suit,


31/41


Permissive Counterclaims! 9 may bring up any counterclaims he has against 6 in a

la&suit, If they are not arising out of the same occurrence as the original claim+ they are %er#issive 9 can bring them up but does not have to,

8o&ever+ once he bring them up+ he has to bring up all the claims he has arising out

of this ne& set of circumstances other&ise+ he &ill be barred from relitigating

anything connected &ith it in the future,• 8ypo! Smith sues his neighbor 1 because he tripped in a hole on 1/s side&al-

and in%ured himself, 1 can counterclaim again S for the damages caused by S/sson riding a la&nmo&er over 1/s la&n, 8o&ever+ if he also &ants to recover forthe death of his cat during the tragic la&nmo&er incident+ he has to raise that atthis point for purposes of the counterclaim+ 9 becomes 6+ and must bring all

claims, 7ther&ise the la&nmo&er incident &ill be ad%udicated and finaliDed+ andno further recovery &ill be allo&ed,

ICE PRE!LCION – !OLLATERAL ETOPPEL

*K$ right+ question+ or fact distinctly put in issue and directly determined by a court of competent %urisdiction+ as a ground of recovery+ cannot be disputed in a subsequent suit bet&een the same parties or their privies,L

* 'ustice 8arlan+ Southern Pacific ailroad Co, v, 4nited States

Eleents

A&E ICE; the issue in question has to be the same substantive question as in the first suit

i,e,+ same legal problem+ such as negligence in a tort suit+ etc,a, Considerations here include!

i. )actual identityii. Eegal standards

iii.


32/41


A!TCALL# LITIGATED; parties had to have aggressively litigated on this issue and it must be

clear &hich issue &as the basis for the holding, If 9 has no incentive to litigate+ it &ould be unfair to assert Issue Preclusion, :"efault

%udgments+ etc,; Russell ). Place; 6 sues same 9 t&ice for violation of a patent, 6 &ins in the first suit+

&here %ury gave a general verdict &ith regards to both methods of leather treatment inquestion+ but did not specify &hich method &as violated, 6 recovered damages, 6/ssecond suit is not barred because it arises out of a different set of circumstances –different violation, 8o&ever+ court finds that 9 is not precluded from defending the issueof patent infringement because &e are not sure &hich aspect of the patent &as found tohave been infringed in the first suit,

• If you cannot tell &hich thing has been ad%udicated+ there is no preclusive effect

very stri$t inter%retation of the issues is necessary for Collateral #stoppel,

♦ ationale! everyone deserves a right to have a Kfair day in courtL on any issue

that may not have yet been decided &e can/t ta-e the ris- of precluding

something that is questionable,

!(llateral Est(el cenari(s

$y( 1; 6 and 9 are in a car accident, In a %urisdiction &here there is no compulsory

counterclaim rule :ule 3;+ 6 sues 9 for negligence+ and 9 counterclaims forcontributory negligence, 9 &ins &ith the %ury bringing in a general verdict, 9 later brings a separate claim against 6 for personal in%uries, Can 9 use the verdict in the st suit as Collateral #stoppel – can he say that he &as not negligent because he &on inthe first suitB

• N( C# 9 could have &on if either he &as found not negligent+ or if 6 &as

found contributorily negligent &here that is a complete defense, Since it &as ageneral verdict+ &e don/t -no& &hich decision the %ury reached+ so there cannot

be C#, This confusion can be prevented by using a s%e$ial verdi$t ,

$y( 2! S sues 1 for negligence and o&nership of the land on &hich S trips and falls,

S &ins on a general verdict, Three months later+ S/s son also trips and falls+ and theysue 1 again, Can there be Issue Preclusion+ even though there &as a general verdictB

• #es6 because &e have to as-! &hat &as necessary for S to &in in the first suitB

♦ The %ury had to have decided for S on both negligence and o&nership counts+

because there &as no &ay for S to &in if either one of those questions &as notactually and favorably resolved for him,

♦ Therefore+ there can be IP &ith a general verdict if there is only one way for a

party to &in in the previous suit,

Rule! al7ays as> 7%at must have been de"ided in (r+er t( reac% t%e first )er+ict6 an+t%en y(u can fi,ure (ut 7%at can /e reclu+e+.

A!TCALL# DE!IDED AND EENTIAL TO T$E 9CDG&ENT; the issue decided has to be

central to the previous suit/s holding in order to have preclusive effect it has to be the

issue that+ if decided differently+ &ould have resulted in a different outcome, +ssential 6uestions;

32


33/41


=%at +i+ t%e c(urt %a)e t( +eci+e in t%e first suit t( reac% t%e result t%at it +i+

=%at 7as a/s(lutely necessary in reac%in, t%e )er+ict in t%e first suit

Ri(s ). Da)is! 6 sues 9 :"avis;+ &ho counterpleads :third party ios; for negligence,

Court finds that all three parties are negligent+ and no one recovers! )irst Suit! 9 &ins against 6! 9 &as negligent+ but 6 &as contributorily negligent so 9

&ins,• &ins against 9! 9 &as negligent+ &as contributorily negligent no recovery+

for anyone+ so &ins because he doesn/t have to pay,

• &ould have &on if either

♦ 7nly 9 had been found negligent+ 7

♦ 9 had been found negligent+ and &as found contributorily negligent

It &as ierati)e t%at /e f(un+ ne,li,ent because regardless of his

o&n status+ could not &in if 9 &as not negligent at all, Second suit! sues 9+ and 9 raises collateral estoppel – 9 says has already been

found negligent,

♦ There is no collateral estoppel because the finding of /s negligence &as notmaterial or essential to /s victory :finding in /s favor;, Rule al7ays as>; if t%is issue 7ere +eci+e+ +ifferently in t%e first

suit6 7(ul+ t%e (utc(e (f t%at suit %a)e /een +ifferent

If yes essential+ issue preclusion

If no not essential+ no issue preclusion

• Subsidiary questions!

♦ Fhich party needed to have been found negligent to get this

resultB


34/41


Alternati)e $(l+in,s! 7%en neit%er fin+in, is necessary6 t%ey are /(t% ,i)en

reclusi)e effect &

#ample! 6 is contributorily negligent and 9 is not negligent+ and 9 &ins, 1either

finding is necessary because 9 &ould have &on either &ay,

• 6 is actually precluded from challenging his negligence in the future because+

though not necessary to the verdict+ 6 could have appealed that findingB

Defenses! the person &ho is being precluded can al&ays defend by sho&ing that the

circumstances have changed+ i, e, if S sues 1 over 1/s tree falling on his car+ and a previous case had decided that 1 o&ns his land+ 1 can defend by sho&ing that he hassold the land and is no& %ust visiting,

P(licy2

+ffi"ien"y! &e &ant to prevent repeated litigation of the same issues or facts &aste

of %udicial resources and other people/s time and money Fairness2 sometimes Collateral #stoppel should not apply if the parties in the first

suit did not have sufficient incentive to litigate Finality2 not getting it right+ but getting it over &ith, Preclusion is based on the

assumption that getting it over &ith is more important than getting it right so as togive people piece of mind,

!%an,es in La7; generally+ subsequent changes in la& &ill not affect previous

%udgments or their enforcement interest of finality, 4S v, .oser

8o&ever+ the court &ill consider the &hether it &ould be etremely un%ust to continue

enforcing a previous %udgment if it goes against public policy! i,e,+ &hen everyone inthe country is sub%ect to the payment of taes+ it &ould not be fair to let someone payless or not at all &hen everyone around him is because of a prior %udgment,Commissioner of IS v, Sunnen

!riinal )s. !i)il; $ivil liability does not result in C or $ri#inal $ases – if in civil

cases the burden is preponderance of the evidence+ and in criminal suits its Kbeyond areasonable doubt+L &e can/t assume that a court that found 9 negligent by Pof# &ouldalso find him negligent


35/41


0eault 8ud#ents;

• Preclusive if valid 9 didn/t sho& up for trial and &aived his right to raise

defenses

• 1ot preclusive if!

♦ 9 didn/t -no& about the suit because he never got notice if no proper

notice+ court didn/t have %ro%er *urisdi$tion over him to enter %udgment so heshould be allo&ed to challenge it,

Involuntary 0is#issal ! preclusive on the merits unless it/s based on %urisdiction+

venue+ or failure to %oin a party,

&CTCALIT#

Res 9u+icata Pure Rule (f &utuality!

Someone &ho &as not a party to the first suit+ and has no privity+ cannot preclude in the

second suit, The one eception are class acti(n suits, $ll members of the class are bound by the

decision in the class action, The theory of the class action suit demands such protection for all parties,

!(llateral Est(el &utuality D(ctrine Preclusion can be asserted only against a party

&ho can assert it in return, #(u cann(t assert reclusi(n a,ainst a n(n?arty t( t%e first suit, Fe &ant to ensure that in the first suit+ the party against &hom preclusion is asserted had

adequate incentive to litigate, #ample! T and < collide in a car crash, P is T/s passenger, T and < sue+ and T is found

not negligent &hile < is negligent, P then sues T+ alleging negligence, Can T used C# to bloc- P/s claimB

1o+ because P has not had her day in court yet and should not be precluded from bringing her o&n negligence claims against T,

Pr(?&utuality A,ainst &utuality

Finality 7nce an issue isad%udicated+ the party inquestion can rela,

$ party can be continuouslydragged into court to litigatethe same issue,

Efficiency Piggy*


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Defensi)e N(nutual !(llateral Est(el $sserted by a non*st*party defendant against

a plaintiff &ho &as party to the first suit, !ity (f An+ers(n ). Flein,! ) sued a contractor for falling in a hole left negligently,

She &on, She then sued the city+ &ho employed the contractor+ and &as precluded

through collateral estoppel+ even though there &as no mutuality of parties City &asallo&ed to use prior %udgment as a "efense because of "octrine of Subrogation! a ne& party in a suit pays for the person/s debt but gets the

benefits to follo& Indemnity! one party stands in the shoes of another

• Indemnity Circle! parties that are in an indemnity relationship cannot be sued

t&ice for the same occurrence because it could result in inconsistent %udgments,

♦ If ) had lost against the contractor+ but had &on against the City+ the City

&ould have a right to sue the Contractor to recover its loses, 8o&ever+ theContractor &ould have already been found not liable+ and the City couldn/trecover,

*ern%ar+ ). *an> (f Aerica! < sued Coo- over some money+ and lost, She then sued

the


37/41


♦ Holding ! L(7er c(urts s%(ul+ eercise +iscreti(n 7%en all(7in, ON&!E

so it/s possible in some cases+ but the factors above need to be ta-en into

consideration+ as &ell as any other factors that may indicate that the issue &asnot fully and fairly decided,

N(n?&utual !(llateral Est(el; Generally* .ust still meet all the other standard requirements of Collateral #stoppel* 8o&ever+ the court must also consider additional factors above to determine if it &ould

be fair to apply estoppel :See Par-land 8osiery above;* trict &utuality D(ctrine %as /een a/an+(ne+ in t%e fe+eral c(urts + but some states

still apply it,

"I. POT?TRIAL !ORRE!TION OF ERROR

GROCND FOR EEHING R ELIEF FRO& DITRI!T !OCRT

Completes the circle of policy!)irst is Accuracy an+ Fairness as encapsulated by Disc()ery RThe rules are designed to ensurethat trial proceeds on the merits and not the access of parties to information,

Then uary 9u+,ent an+ 9NO" R Accuracy an+ Fairness against Efficiency RFhileeveryone should have their day in court+ the evidence sometimes does not merit it,

Then Issue and !lai Preclusi(n Rhere+ Efficiency an+ Finality Rall claims are theoreticallyresolved correctly the first time through,


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&isreresentati(n

Ot%er &isc(n+uct (f an A+)erse Party

=it%in a Reas(na/le Tie of the %udgment+ order or proceeding+ the court may relieve

the party of a final %udgment for!

• -


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su/stantial ,r(un+ f(r +ifference (f (ini(n+ and &here the appeal may ateriallya+)ance t%e liti,ati(n,

• =it%in 1< +ays of the entry of the "istrict Court order an appeal to the Court of

$ppeals must be filed

• Court of $ppeals has to erit t%e aeal at its +iscreti(n it can refuse to

hear the case, $ll of this &ill only be allo&ed if it &ill not mean staying any proceeding

at the "istrict Court level+ unless the %udge or the Court of $ppeals allo&sit,

Li/erty &utual Insurance !(. ). =etMel! "istrict Court ruled on the issue of liability

but not on damages+ and petitioner too- this up to the Court of $ppeals, The SupremeCourt ruled that Cof$ didn/t have %urisdiction to hear the appeal+ because this &as aninterlocutory decision not falling under the eception of J22, #ven though it is notefficient to send the case bac- to the "istrict Court no& after it/s been argued on appeal+the SC doesn/t &ant to set a bad precedent! Cof$ can/t hear cases &ithout proper

%urisdiction, Rati(nale f(r n(t %earin, interl(cut(ry cases! it is possible that after the &hole

case is decided+ it &ill go to the Court of $ppeals any&ay+ and then they &ould haveto hear everything t&ice best to -eep all the issues together+ and J22 provides

for hearing of the stuff that is imperative to decide during trial if i##ediate har#

&ill result+ then an in%unction can be imperative,

• "iberty Mutual ; 2 issues – liability and remedies – but (nly (ne clai

Rule @4/0; 9u+,ent C(n &ultile !lai (r In)(l)in, &ultile Parties

The Court may +irect entry (f final 'u+,ent for one or more+ but not all claims+

7%en (re t%an (ne clai f(r relief is resent in an acti(n :includescounterclaims+ cross*claims+ and third*party claims; only upon an eress+eterinati(n t%at t%ere is n( 'ust reas(n f(r +elay and upon an eress +irecti(nf(r t%e entry (f 'u+,ent,

♦ The claim has to be resolved finally and definitely! a claim can be finaliDed if

the claim is unrelated to the deter#ination o the other $lai#s asserted in the$ase+ and doesn3t turn on the sa#e set o a$ts other&ise+ it/s not efficient,

• 4nder the ules #nabling $ct J20@2+ a )CP cannot go beyond a Congressional

statute, Therefore+ ule >?:b; can/t abridge substantive rights of a party can/t

confer %urisdiction &here there isn/t any+ i,e,+ cannot allo& the Court of $ppeals tohear a case over &hich it has no %urisdiction because the claim is not in fact

finaliDed,

T%e !(llateral Or+er rule !(%en Rule0;

$ court can revie& an interlocutory order if revie& &ould be effectively impossible later!

t%e issue itself is c(llateral t( a re)ie7 later, Cohen v. 9enei$ial Industrial "oan Cor%.: The Court ordered a party to not post a

bond according to )CP+ even though the local state statute demanded such bond be posted before trial started, :#rie issue; The adverse party appealed+ because if this

3


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decision &asn/t overturned at the beginning+ there &ould be no use for it later its

purpose &as to pay the party/s legal costs if they &on, If nothing &as posted at the beginning+ a later reversal of the decision &ould still not get the party its money,There &ould be undue hardship to the party if the "istrict Court made an incorrectruling,

&an+aus! another &ay to get to an appeal before the conclusion of a trial is to see- a &rit

of mandamus say that the Court has erred so greatly that its decision needs to be revie&ed

immediately, Fe sa& an eample of a discovery question revie&ed on appeal because the "istrict

'udge imprisoned counsel for failure to turn over documents, :8ic-man v, Taylor;

Fe+eral )s. tate Rules

State courts not as strict as federal courts re! finality, 1H ule allo&s interlocutory

appeals in virtually all situations, $s a result+ in diversity actions in federal courts+ rules governing appellate revie& of

interlocutory decisions are outcome determinative in practice,

P(licy! Fhich $pproach is


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De NO"O; the court of appeals doesn/t give any deference at all to the "istrict Court/s

conclusion,

!lear Err(r; a$tual findings by the %udge are clearly in contradiction to the evidence,

Court of $ppeals &ill not upset the finding of fact unless they are clearly erroneous * a

court must have a Kfirm and definite conviction that a mista-e has been committed,L

A/use (f Discreti(n; discretionary decision that could go either &ay based on the %udge/s

vie& of &hat is fair &ill not li-ely be reversed, If there are 2 plausible conclusions to dra&form a set of facts+ the "istrict Court can choose either &ithout violating discretion, Chec-s to see if there &as a/use+ not if there could have been a different outcome,

9u+,e 9ury !(urt (f Aeals

* get to evaluatedemeanorcredibility

* systemic or

institutionalefficiency

* epertise in siftingthrough conflictingand irrelevantevidence+ andreaching a findingabout &hat actuallyhappened

*

Documents

Civil Procedure II - Smith - Spring 2003-2-3